Mission impossible

The UN Commission on Human Rights is facing problems with its investigation in the Democratic Republic of Congo. Kinshasa has already blocked two previous missions led by Roberto Garreton, the Commission’ special rapporteur, who has written several reports on Africa, and, in particular, a damning report on the atrocities during the Congo-Zaire liberation war. Here, he reports on the obstacles he faced.

by Robert Garreton

Since Mobutu Sese Seko came to power in 1965 and the former
Democratic Republic of the Congo became Zaire (it has recently
reverted to its old name), the United Nations has not carried out any
official investigations in the country. The major Western powers
condoned the flagrant human rights violations because of the
dictator’s strategic role during the cold war.

The official procedure for investigating human rights violations
was established in 1967 by Economic and Social Council Resolution
1235. This authorises the Commission on Human Rights to carry out
searching official investigations when human rights have been
persistently violated. The Commission instructs its chairman to
appoint a working party or a special rapporteur after consulting the
other members (1). But the mere fact that a rapporteur has been
appointed is indicative of concern and immediately prompts a hostile
diplomatic reaction from the country to be investigated.

The resolution, covering all fundamental rights, was first applied
in 1975 when the Commission responded to a General Assembly petition
(Resolution 3219, 1974) by appointing a working party to investigate
human rights in Chile (Resolution 8, 1975) (2). Later on, other
countries were investigated: Cambodia, Nicaragua, Equatorial Guinea,
Guatemala, El Salvador, Bolivia, Poland, Iran, Afghanistan, Haiti,
Burma, Iraq, Sudan, Rwanda, Burundi, Somalia, Cuba, former Yugoslavia
and Zaire.

A special rapporteur on the human rights situation in Zaire was
appointed by a resolution on 9 March 1994, adopted by consensus. It
was founded mainly on the serious violations of human rights and
fundamental freedoms, on the use of torture and cruel treatment,
arbitrary and secret detentions, inhuman prison conditions, enforced
disappearances, arbitrary executions and attacks on various freedoms.
The mission was also to look at the ethnic conflicts in Sud-Kivu and
Shaba and at population movements. The author of this article was
appointed rapporteur.

By then President Mobutu had been in power for 29 years. It was
just after the Rwandan genocide, when over 1,200,000 refugees had
arrived in Zaire. The first serious clashes between the people from
Rwanda and those claiming to be native Zairians began in March 1993,
before the Rwanda crisis. The democratisation process started in
April 1990 had come to a halt: the Sovereign National Conference
agreements (1991-92) were never implemented. The dictatorship had
paralysed the country’s economy and the poverty was appalling.
Corruption was rife and no solution had been found to one of the
problems that was to trigger the 1996 conflict: the nationality of
large numbers of people of Rwandan origin.

Always the same accusations

The rapporteur was granted permission to go to Zaire in October
1994. In presenting his findings at the next session, he described
the shocking state of fundamental rights and the more or less total
paralysis of the transition to democracy started in 1990 (3). He
feared that conflict could not be avoided. Journalists, lawyers,
political analysts, diplomats and military experts in Washington,
Mbuji-Maji, Geneva, Kinshasa, Brussels and Goma were saying (and it
was also clear from the special rapporteur’s report on the
extrajudicial, summary or arbitrary executions) that if the political
situation in Zaire became volatile the consequences would be even
more tragic than in Rwanda or Burundi. With the present level of
tension and the tribal and regional rivalries stirred up by the
massive influx of Rwandan refugees the future was bleak. The
international community, especially the countries with historic
responsibilities in the region, could not ignore this grave
situation.

The special rapporteur felt he must speak out this issue.
Preventive diplomacy was urgently needed, but he did not think it
should simply reinforce the status quo; it was not certain that there
was any safeguard other than stability. Zaire’s transition to
democracy could not be delayed. Friendly countries could exert their
diplomatic and political influence to resolve the conflicts within
the country.

The rapporteur received the same treatment as other rapporteurs
for the Commission on Human Rights. Once his mission was
accomplished, he was accused by the government of being untruthful
and prejudiced and not giving credit for the progress that had been
made. General Pinochet made the same allegations against the groups
and rapporteurs that exposed his crimes between 1975 and 1990. As
usual, the rapporteur was supported by defenders of freedoms both in
and outside Zaire. His appointment was eventually extended by the
Commission on Human Rights.

On his second mission, he had even more trouble in gaining
permission from the government - an “invitation” in diplomatic terms
to visit the country. In his report he drew attention to the
worrying anti-Rwandan feeling common amongst politicians, which was
bound to lead to disaster. Being obliged to comply with the treaties
and international human rights declarations, he had to broach a
dangerous and taboo subject in Zairian politics: the nationality of
people belonging to ethnic groups from what is now Rwandan territory
and, in particular, the Tutsis from Sud-Kivu known as Banyamulenges
or “people living in the Mulenge hills”. Although some have lived in
Zaire for over eight generations, since 1981 they have been regarded
as aliens and more or less stateless. The rapporteur’s position
earned him the enmity of several major non-governmental organisations
as well as the government. In April 1996 his appointment was renewed
again by the Commission on Human Rights, still by consensus.

The argument for non-interference

In July 1996 the rapporteur had to make an urgent trip to the east
of the country where there had been further confrontations between
tribes from Rwanda (Tutsis and Hutus), together with the “native”
population, Nandes, Hundes and others. The conflict had been sparked
off when Rwandan refugees from the camps, aided by Zairian soldiers
and Hutus, attacked local Tutsis, claiming a large number of
victims.

The rapporteur was not allowed into Zaire and had to compile his
report from evidence obtained in Rwanda. His findings, rejected as
usual by the Mobutu government, were recognised by the Tutsi
government in Rwanda. The foreign minister said at a meeting with the
diplomatic corps in Kigali that the rapporteur was the first
Westerner to have understood the problems of the Rwandan population
in Zaire. The report on this mission made it clear that war was
imminent and in fact it broke out at the beginning of September
1996.

The annual report in December gave an account of the first months
of the war and exposed the human rights violations (4) and the
failure by both rebels and government to comply with the 1949 Geneva
Conventions on internal conflicts. It referred to the large number of
massacres.

Following reports of alleged atrocities by the rebels, the High
Commissioner for Human Rights asked the rapporteur to make an urgent
visit to the region. He managed to reach Goma, although he was not
given any assistance or technical support and the mission had to be
completed in a few days. In his report he stated that there was
evidence to justify a full investigation but proposed that it should
cover the attacks by both sides and not just by the rebels. He
suggested the creation of a special working party under the normal
Commission on Human Rights machinery (a rapporteur on summary or
arbitrary executions, a member responsible for investigating enforced
disappearances and a rapporteur on Zaire). The working party should
be given the staff and technical support it needed for a project of
this size. The Commission extended the rapporteur’s brief to allow
him to investigate human rights violations all over the country and
agreed to the proposal to set up a working party.

However the Alliance of Democratic Forces for the Liberation of
Congo-Zaire (ADFL) was not prepared to allow an investigation. The
report by the March 1997 mission provided the excuse to disqualify
the group on the grounds that it included the author of the
preliminary report, who was warned that he was not welcome in Congo.
The rapporteur was no longer “the only Westerner who understood
Zaire’s nationality problems”, he was now “a liar, biased, not
objective”. Obviously the Commission’s terms of reference for the
group could not be divided. They were not three people making
individual enquiries but a three-person team with a remit to carry
out a “joint investigation”. If one was excluded the whole project
would collapse. Although the working party was prepared to be
flexible, none of the approaches made to what were at that time the
rebels (and later became the government of the Democratic Republic of
Congo) were successful.

The UN Secretary-General, concerned at the alleged massacres,
decided to set up an investigating team under his own responsibility
rather than that of the Commission on Human Rights. He would define
its terms of reference. The team was to report before the end of
1997. The decision required the consent of the new Congolese
government, which did eventually agree to the investigation after the
Secretary-General’s team had spent more than a month in Congo-Zaire
without being able to leave Kinshasa (5).

In any event, the Commission on Human Rights working party and the
rapporteur fulfilled their commitments to present their reports to
the General Assembly. They report on the background and highlight
numerous human rights violations, mainly by the Alliance, the
Banyamulenges and their allies (68.2%), Zairian soldiers (16.75%),
the former Rwandan armed forces and the Interhamwe Hutu militia
(9.64%), the Rwandan Patriotic Front (2.3%), Burundi soldiers (2.3%)
and mercenaries under the orders of Kinshasa (1.52%).

The Secretary-General’s decision and the Commission resolution
reflect concern about the reported massacres and the need for
investigation and sanctions. It is to be hoped that these concerns
will not undermine the highly effective machinery set up,
consolidated and improved by the Commission since the Chilean
investigation in the 1970s. The World Conference on Human Rights held
in Vienna in 1993 attached great importance to these initiatives and
showed that countries are extremely reluctant to admit to their own
human rights violations. So anxious are they to cover up their
responsibility that they are always ready to trot out the arguments
of non-interference in their internal affairs or bias by independent
rapporteurs.

(1) Ensuring that all the regional groups in the
Commission express their views.

(2) Previously the Commission had only asked for
specific investigations into apartheid and the situation of political
detainees in southern Africa (Resolutions 2 and 7, 1967) and the
violation of the Fourth Geneva Convention (1949) in regard to the
civilian population of territories occupied by Israel in 1967
(Resolution 6, 1969).

(3) As far as the rapporteur is concerned, human
rights have to be linked to democracy. In his reports he has
supported a genuine “human right to democracy”.

(4) Generally speaking groups other than
governments, rebel groups for example, are not considered responsible
for human rights violations. However the situation in Zaire was
exactly as envisaged in Article I, protocol II of the Geneva
Conventions. An organised armed group under a responsible command
exercising similar control to a government in occupied territory may
be expected to respect human rights.